TaxTMI 
TaxTMI 
2026 (9) TMI 1906
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....n) Act, 1972 (in short 'Act of 1972'). Based on these notifications, the market committee in the Burdwan district directed the petitioner/appellant to obtain license under the 1972 Act and pay market fees on the manufacturing and sale of Rice Bran Oil and De-Oiled Rice Bran manufactured thereat. The said oils fall under the fee bracket of 'Rice Oil'. 3. Subsequently, the West Bengal Legislature introduced Amendment Acts in 2014 and 2017 to the 1972 Act, amending the definition of "agricultural produce." Following the change in the definition of agricultural produce, the Burdwan Market Committee again directed the petitioner to pay market fees. Under the Amendment Act of 2017, 'all vegetable oils' were explicitly included under the schedule. This was an attempt to validate the charging of marketing fees, under the Act of 1972, on the manufacture of rice bran oil and de-oiled rice bran. 4. The petitioner obtained amendment of pleadings and prayers in the first writ petition, challenging the Amendment Acts of 2014 and 2017, and the executive notification issued based on the Amendment Act of 2017. The said executive notification included Rice Bran Oil in the schedule to the Act o....
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....ioner/appellant was directed to pay market fee to the market committee of Burdwan district for manufacturing the said oils, in the designated area of Burdwan District from 2008 onwards. 11. On 3rd June 2011, the Burdwan Regulatory Market Committee called upon the appellant to obtain a license under Section 13 of the Act of 1972, within 15 days, for running its processing unit to manufacture Rice Bran Oil and De-oiled Rice Bran. Upon the petitioner protesting against the said notice, it was threatened with penalties under Section 34 of the Act of 1972. 12. By the Amendment Act of the year 2014, the State Legislature amended the definition of "Agricultural Produce", under Section 2 (1) (a) of the Act of 1972. It, inter alia, included the expressions, "whether processed or unprocessed" and "and related and secondary product or by product or combination of two or more, two of such produce" in Section 2 (1)(a) (supra). 13. The Amendment Act of 2014 introduced Section 2(mb) in the Act of 1972 and defined "processing" as follows:- Sec. 2(mb) processing" means any one or more of a series of treatments relating to powdering, crushing, decorticating, de-husking, parboiling,....
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....ericulture, livestock and products of livestock, animal husbandry, fleeces (raw wool) and skins of animals, forest produce and any related and secondary product or by-product and combination of two or more than two of such produce as specified in the Schedule: Provided that the State Government may, by notification, include in, or exclude from, any item of agricultural produce in the Schedule;] Emphasis Applied 18. The appellant obtained amendment of the writ petition and challenged the said definition inter-alia on the ground the same is unconstitutional. It was contended that the amendment Act had the effect of introducing new restrictions on free trade within the State. The assent of President of India in terms of Article 304 (b) of the Constitution was not obtained prior to the introduction of the amendment bill in the State Legislature. Such a prior assent was necessary since the principal Act of 1972 was passed with the assent of the President of India. 19. By a further amendment to the Act of 1972 enforced on 31st March, 2017, the State Legislature amended the schedule to the Act of 1972 to introduce "Oils". By an executive notification dated 24th Jul....
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.... of India. issued by the Government of West Bengal, Department of Agriculture vide notification No. 391-L dated 31st March, 2017, unconstitutional being ultra vires the Constitution of India. b) Issue a writ of and/or in the nature of mandamus for bearing the respondent authorities from giving any effect and/or further effect to the impugned notification 29.01.2002. bb) Issue a writ of and/or in the nature of Mandamus restraining the respondent authorities and each of them from giving any effect and/or further effect to the impugned notification bearing No. 2537-M.W.&C/IM-05/99 (Pt. 1) dated 22nd August, 2008. bc) Issue a writ of and/or in the nature of Mandamus declaring the respondent authorities and each one of them from giving any effect and/or further effect to the provisions of the West Bengal Act XXVII of 2014, namely the West Bengal Agricultural Produce Marketing (Regulation) (Amendment) Act, 2014 passed by the West Bengal Legislature and published in the Kolkata Gazette by the Government of West Bengal, Law Department vide notification No. 86-L dated 21st January, 2015. bd) Issue a writ of and/or in the nature of Mandamus restraining the....
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....o take any steps pursuant to the impugned assessment order dated June 30, 2016 issued by respondent no. 6 and the impugned order dated May 16, 2019 issued by the respondent no. 2 and acting in furtherance thereof; e) A writ in the nature of mandamus do issue directing the respondents to forthwith refund the market fee that was deposited by the petitioner under protest for the period from 2012 to 2016 along with interest @18% per annum; f) An order of stay do issue staying the operation of the impugned assessment order dated June 30, 2016 issued by respondent no. 6 and the impugned order dated May 16, 2019 issued by the respondent no. 2 till the disposal of this application; g) An order of injunction do issue restraining the respondents from levying and collecting market fee for manufacture and sale of Rice Bran Oil and Deoiled Rice Bran under The West Bengal Agricultural Produce Marketing Regulation) Rules, 1982 till the disposal of this application; h) An interim order of injunction do issue directing the respondent authorities not to give effect to the impugned assessment order dated June 30, 2016 issued by respondent no. 6 and the impugned ord....
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....onstitution of India because bills relating to trade and commerce require the prior assent of the Hon'ble President of India before its introduction to the Legislature, which was not obtained by the State. He has alternatively argued that even if the 2014 and 2017 Amendment Acts are upheld by this Court, rice bran oil and de-oiled rice bran cannot per-se be termed as "agricultural produce", irrespective of the definitions under the Act. 24. The 2014 Amendment Act added 'processed products' to the definition of 'agricultural produce', and the 2017 Amendment Act added 'all vegetable oils' to the schedule of the 1972 Act. Subsequently, executive notification no. 877-AM O 9M-46/2011 dated July 24, 2017, explicitly added 'rice bran oil' to the schedule of the 1972 Act, which is argued to be impermissible because rice bran oil and de-oiled rice bran are manufactured products. 25. The nature and extent of freedom guaranteed under Article 301 of the Constitution of India, thus, fall for consideration. Art 301 is set out below:- 301. Freedom of trade, commerce and intercourse Subject to the other provisions of this Part, trade, commerce and intercourse throughout the....
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....he extent of burden would not by itself justify the levy being struck down as a restriction contrary to Article 301 of the Constitution. 148. In addition to the reasons stated in the judgment, it appears that there is a more fundamental reason why tax is not liable to be viewed as a restriction on the freedom of trade, commerce and intercourse. On the contrary it seems that a tax, such as the one we are concerned with is predicated on the freedom of trade and commerce. This is particularly true of an entry tax. It is an impost levied on transactions which are entered into in the course of that freedom. In fact, but for such freedom of trade there would be no transaction and no occasion for the levy of a tax. The levy of a tax is a distinct event from the transaction. Trade and commerce must take place to attract a tax. Undoubtedly, a tax may make the transaction less profitable to the extent of the tax. But that is far from being an impediment on the transaction which is part of trade, the freedom which is guaranteed under Article 301. It is not possible to readily conceive of a tax, which in itself, restricts or impedes the freedom of trade. The circumstances are much lik....
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....rent List are set out below for a comparative analysis:- List II-State List 26. Trade and commerce within the State subject to the provisions of entry 33 of List III. List III - Concurrent List [33. Trade and commerce in, and the production, supply and distribution of,- (a) the products of any industry where the control of such industry by the Union is declared by Parliament by law to be expedient in the public interest, and imported goods of the same kind as such products; (b) foodstuffs, including edible oilseeds and oils; (c) cattle fodder, including oilcakes and other concentrates; (d) raw cotton, whether ginned or unginned, and cotton seed; and (e) raw jute. Emphasis Applied 33. Entry no. 33 of the Concurrent List contains specific areas of trade and commerce. Whereas entry no. 26 of the State list has no such areas. Entry no. 26, thus, contemplates a wider net of legislative issues relating to trade and commerce than entry no. 33. Entry no. 26 in its sweep thus includes the imposition of market fees on trade and commerce of oil. 34. We are conscious that Entry no. 33, inter alia, m....
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....ounsel for the appellant has argued that the State Legislature could not have defined 'sale' in the West Bengal Agricultural Produce Marketing (Regulation) Act, 1972 given "sale" falls under Entry no. 7 of the Concurrent List and already stands defined under Section 4 and 5 of the Sales of Goods Act, 1930, a Central legislation. He argues that the definition of 'sale' in the 1972 Act is contrary to that defined in the Sales of Goods Act, 1930. 41. The definition of "sale" in the Act of 1972 and that in the Sale of Goods Act, 1930, must be considered in light of Entry no. 7 under the Concurrent List. These definitions and legislative entry are serially set out below: Section 2(na) of the Act of 1972- "sale" means physical transfer of ownership of agricultural produce from one person to another person against a consideration of value, either by cash, or by valuable, or on deferred payment basis: Provided that any transfer of stock of agriculture produce from one market area to another market area, irrespective of change of ownership falls within the definition of sale; From the Sales of Goods Act, 1930-Sec. 4 Sale and agreement to sell.- (1) A contrac....
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....erein 'Subject to the provisions of any law for the time being in force'. 44. Thus, the Sale of Goods Act is not a universal law on the subject of the sale of goods. It has left scope for other legislation to coexist with it. This is evident from the preamble to the Act of 1930, which states 'An Act to define and amend the law relating to the sale of goods'. Another example to bolster this view is in respect of CIF contracts. In such contracts risk and property do not pass to the buyer at the same time as stipulated under the Act of 1930. 45. The Special Committee, appointed by the Legislative department Resolution, No. 47-1/29-C and G, dated the 28th March, 1929, chaired by B.L. Mitter, filed the report dated 17th July, 1929, has adverted to the object and purpose of the Sales of Goods Act, 1930, as follows:- Appendix C. (a) The present Bill embodies the principles that the question whether a contract for the sale of goods does or does not pass the property in the goods from the buyer to the seller must in all cases be determined by the intention of the parties to the contract. The provisions of Chapter VII of the Indian Contract Act are vague and conflicting on ....
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....rson from taking the plea that he is not liable to pay market fees on the ground that the agricultural produce was not sold within the market area, but rather in some other area. 49. Thus, the definition of "sale" under the Act of 1972 was designed to prevent fee evasion by individuals who choose not to sell within the market area. 50. There is another aspect to this matter. As stated above, the amendments of 2014 and 2017 fall within the scope of Entry no. 26 of the State List. Entry no. 66 of the State List enlists fees to be imposed on any of legislative entries enumerated under the State list. The Amendment Acts of 2014 and 2017, therefore, being legislation under Entry no. 26, can also bring in appropriate amendments to the Act of 1972 for fastening the liability to pay fees in view of entry of no. 66 of the State list. 51. Therefore, the expression "sale" defined in the Act of 1972, viewed alongside legislative Entry 26 read with Entry 66 of State List indicates there was no need for the prior assent of the President of India before defining "sale" by way of the Amendment Act of 2014 in the Act of 1972.Such definition is not contrary to the Sales of Goods Act, 1930. ....
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....CC 1, it was held as follows:- 118.........It held that in some contexts, it means "only one of the directors, does not matter which one", but in other contexts, it is capable of meaning "every one of the directors". It held that which of these two meanings was intended by the legislature in any particular statutory phrase has to be decided by the courts on consideration of the context in which the words appear, and in particular, the scheme and object of the legislation. 125. This Court held that the word "any" is of wide amplitude. It means "one or some or all". Referring to Black's Law Dictionary, the Court observed that the word "any" has a diversity of meaning and may be employed to indicate "all" or "every" as well as "some" or "one". However, the meaning which is to be given to it would depend upon the context and the subject-matter of the statute. 127. The Court again reiterated that the word "any" must be read in the context of the statute. The Court also applied the principles of purposive construction to the term "any" to mean "all". Emphasis applied 58. The definition of "agricultural produce" must be given a purposive interpretati....
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....l produce with the said proviso. 62. The word 'any' in the said expression was introduced with a view to enable the Legislature to enact a proviso, conferring State Executive with the power of the inclusion and exclusion of agricultural products. Section 2(1)/(a), however, could not and did not empower the executive to alter the definition of 'agricultural produce'. Every item included in the schedule must, therefore, be consistent with the said definition. 63. The reason for conferment of the said concurrent power is that legislative process takes some good amount of time to enact a law. The scarcity and availability of food are contingent, emergent and urgent issues. A contingent issue is normally addressed by the executive, since it functions at the ground level. The Act of 1972 deals with the evolving market situation relating to the marketing of agricultural produce. (iii) The amended definition of 'agricultural produce' 64. The Amendment Act of 1978, the expression 'includes any related products' was included in the definition of 'agriculture produce' as follows:- Section 2 (1) (a) agricultural produce means any produce of agriculture, horticulture, pisci....
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....nt. 69. The definition of agricultural produce amended by the Amendment Act of 2014 is as follows:- (a) "agricultural produce" means any produce, whether processed or unprocessed of agriculture, horticulture, apiculture, pisciculture, sericulture, livestock and products of livestock, animal husbandry, fleeces (raw wool) and skins of animals, forest produce and any related and secondary product or by-product and combination of two or more than two of such produce as specified in the Schedule: Emphasis applied 70. The amended definition of 'agricultural produce' must be read in light of the word processing under Section 2(mb) of the Act of 1972 set out below:- Sec. 2(mb) processing" means any one or more of a series of treatments relating to powdering, crushing, decorticating, de-husking, parboiling, polishing. Ginning, pressing, curing or any other manual, mechanical, chemical or physical treatment to which raw agricultural produce or its product is subjected to; Emphasis applied 71. The first part of the definition of 'processing' specifies the techniques of processing namely powdering, crushing, decorticating, de-husking, parboiling, po....
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.... different commodity may come into existence, it would still be an "agricultural produce". This is best illustrated by sugarcane which is in Schedule A Item VIII at Serial No. 14. From sugarcane, "rab" and "gur" are manufactured. They are already different commodities or items. Yet they are all included. The specific inclusion of items like "gur, rab, shakkar, khandsari and jaggery" is to make it clear that merely because it becomes a different item or commodity it is not excluded. 76. In Park Leather Industry (supra), it was held that a 'processed agricultural product' retains the character of its raw agricultural produce. In the present case, Rice Bran Oil and De-oiled Rice Bran are manufactured (but not processed) from agricultural produce. A manufactured product loses all characteristics of its raw material. In CTT v. Kumar Paints and Mill Stores, reported in 2023 SCC OnLine SC 263, it was held as follows:- 8. This court specifically noticed in Union of India v. Delhi Cloth and General Mills [1963] Suppl. 1 SCR 586 that "manufacture" meant bringing into existence a "new" substance and did not mean merely to bring about some change in the substance. In Mahalaxmi Stor....
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....late the final product back to the raw agricultural product (e.g., consumers do not associate rice bran oil or de-oiled rice bran with paddy), the item cannot be viewed as a mere processed product. A product to qualify as a processed one, must remind the market of its original raw material. 81. Rice Bran Oil and De-Oiled Rice Bran are made from the outer layers of paddy, which undergo several technical processes to yield these final forms. They are distinct manufactured products recognized separately in the market, hence are not covered under the definition of agricultural produce. 82. The decision of a single bench of this Court in Amit Trade Centre Private Ltd. v. State of W.B. reported in 2014 SCC Online Cal 17856 is held incorrect in view of the discussions hereinabove. 83. Rice Bran oil and de-Oiled Rice Bran, thus, are not processed agricultural products within the definition of agricultural produce as it stands after the Amendment Act of 2014 and as on date. (v) The legislature never intended to include rice bran oil and de-oiled rice bran in the definition of "agricultural produce." 84. Significantly, the Amendment Act of 2017 did not include the Rice oil and....
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....lly excluded from the definition of 'agricultural produce'. 88. A manufactured product emerges as a distinct and different commodity from its raw product. The test is that the regular players in the market would be reminded of 'paddy' when they consider buying 'Rice Bran Oil' and 'De-oiled Rice Bran'. In this regard, the difference between 'rice husk' and 'paddy' alluded to in Noble Resources decision (Supra), may be referred to as follows:- 48........What was produced by the cultivator was paddy which alone could be considered as an agricultural product. The husk was the result of a process of dehusking which was not agriculture. High Court answered the question in favour of the assessee holding that operation of dehusking paddy is not an industrial or manufacturing operation as commonly understood. It is essentially an agricultural operation. Both rice and husk remain in their natural form as a result of dehusking and are covered by the term 'agricultural product'. It was in that context this Court observed that the term 'agricultural product' or 'product of agriculture' is required to be construed liberally so as to include not merely the primary product as it actual....
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....l and consequential causal connection with paddy. They however, are not perceived by the Market as oils, derived from paddy. The market does not recognize them as produce of paddy since they lose all its characteristics of paddy. (vii) The extent of liberal interpretation that may be given to the definition of agricultural produce 94. Ld. Advocate General would argue that the fact that legislature has kept the definition of 'agricultural produce' inclusive finds support in the decision of Noble Resources decision (supra). It was held that the definition of 'agricultural produce' needs to be construed 'liberally' at para 48 which is as follows:- 48.........Both rice and husk remain in their natural form as a result of dehusking and are covered by the term 'agricultural product'. It was in that context this Court observed that the term 'agricultural product' or 'product of agriculture' is required to be construed liberally so as to include not merely the primary product as it actually grows but also a product which undergoes a simple operation so as to make it more saleable or more usable. The rice and the husk though separated remain as they were produced and hence co....
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.... need not be directly derived from and be the immediate effect of the raw product. In Sangam (supra) the Court examined whether ghee was a product of livestock namely the Cow. It was argued that cows do not directly produce ghee. Two or three simple activities like boiling, curding and churning and re-boiling butter is undertaken to convert milk into ghee. This can be done at home. The said activities do not involve complicated manufacturing and industrial activities unlike production of Rice Oil and Rice Bran oil. The said decision, therefore, does not apply to his case. 101. Thus, tested from the perspective of the Act of 1972, the question should be whether Rice Bran Oil or Rice Oil has been directly produced from paddy by the techniques namely agriculture, pisciculture, forestry, horticulture and animal husbandry specified in the definition of 'agricultural produce' under the Act of 1972.The source of the Rice Oil and Rice Bran Oil being an agricultural produce namely, paddy is immaterial given the statute has specified the techniques, from which an agricultural produce should be produced. 102. Ld. AG has relied on Champaklal H. Thakkar and Ors. v. State of Gujarat and An....
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.... Emphasis Applied 105. Therefore, the ruling in Champaklal (supra) negates the State's case. If a final product retains the essential characteristics of the raw material from which it was made, it qualifies as an agricultural product. In this case, however, de-oiled rice bran and rice bran oil do not retain the characteristics of paddy. 106. Ld. AG has next relied on the decision in Kishan Lal v. State of Rajasthan & Ors., reported in (1990) Supp SCC 742, and argued that when sugar is produced in a mill or factory, it does not cease to be an agricultural produce. De-oiled rice bran and rice bran oil are produced in a factory. Thus, the place of production will not exclude the said oils from being categorized as 'agricultural produce' 107. In the Kishan Lal decision (supra), the Court held that a product can be produced either by an indigenous or local method or by a sophisticated, scientific, and mechanical method. The production of sugar in mills or factories occurs through a sophisticated, scientific, and mechanical process. The said modernized process does not change the character of the sugar. In paragraph 5 of Kishan Lal decision (supra), it was held as follows: ....
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....owever, subsequently introduced by the state executive in the 1972 Act. The State legislature did not include them at all at any point in time. Second, all vegetable oils have been scheduled as agricultural produce from the inception of 1972 West Bengal Act. The state executive realized that the item vegetable oils, though broad, are not capable of including rice bran oil and de-oiled rice bran. Thus, the State executive issued separate notifications to include the same. The present facts are thus distinct from the Britannia Case. 113. The decision of the Bombay High Court has been affirmed by the Hon'ble Supreme Court in Britannia Industries Ltd. v. Bombay Agricultural Produce Marketing Committee, reported in (2010) 11 SCC 623, and upon placing reliance on Champaklal H. Thakkar (decision supra), discussed above, it was held that Sugar and Vanaspati retain original character of their raw material. Therefore, they were held agricultural produce. Such is not the case in so far as Rice bran oil is concerned. 114. In view of the aforesaid discussions, Rice bran oil and de-oiled rice bran are not agricultural produce. All the market fees imposed on the appellant/petitioner, Sethia....
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.... a class to whom the service is made available. For another, the service may not be provided directly to a person as distinguished from a general service which is provided to the members of a group or class of which that person is a part. Moreover, as the law has progressed, it has come to be recognised that there need not be any exact correlation between the expenditure which is incurred in providing a service and the amount which is realised by the State. The distinction that while a tax is a compulsory exaction, a fee constitutes a voluntary payment for services rendered does not hold good. As in the case of a tax, so also in the case of a fee, the exaction may not be truly of a voluntary nature. Similarly, the element of a service may not be totally absent in a given case in the context of a provision which imposes a tax. 66. In view of this consistent line of authority, it emerges that the practical and even constitutional, distinction between a tax and fee has been weathered down. As in the case of a tax, a fee may also involve a compulsory exaction. A fee may involve an element of compulsion and its proceeds may form a part of the Consolidated Fund. Similarly, the e....
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....sold within such area. Explanation III.-For the purpose of this sub-section, all agricultural produce stored in the cold storages within the market area shall, unless the contrary is proved, be presumed to have been stored for the purpose of sale. 123. The un-amended section 17 contemplates payment of fees to the market committee when the agricultural produce is brought within the territorial jurisdiction of the Market Committee. The receipt of any service from the market committee is thus irrelevant to the payment of market fees. 124. The amended section 17 has further broadened the scope of market fees. The amended section 17 has employed the expression-'the market committee shall levy fees on any agricultural produce in force'. Thus, when a product is specified in the schedule of the Act of 1972, the production and manufacturing of that product in the market area will be subject to a market fee irrespective whether he avails the services of the market committee. 125. Explanation 1 to the amended section 17 creates a deeming fiction. It states that when an agricultural product is taken out of the territorial limits of a market committee, it shall be presumed tha....
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....mittee is not to provide services at the door step of an entity without the latter asking for. An entity in problem, complaining violation of the Act of 1972, can approach the market committee for resolution and redressal of disputes. These in fact, are the services provided to an entity. Therefore, the 1972 Act can legitimately levy market fees on agricultural produce brought within the market area. (ii) Double Taxation 130. Ld. Senior Counsel has argued that imposing market fees on the appellant suffers from the vice of double taxation, given that the appellant has already paid GST. This issue requires for specific facts regarding what kind of further taxes are paid by the appellant. 131. In the present case, since we have held that the appellant will not be called upon to pay the market fee as Rice bran oil and de-oiled rice bran are not agricultural produce. This issue is not pronounced upon in these proceedings. The question of double taxation cannot be decided in the context of the limited facts of the case. ISSUE (e) I. i. The Industries (Development and Regulation) Act, 1951 carries a distinct regulatory purpose from the State Act of 1972 (supra) 132. Ld. ....
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....537-M.W.&C/1M-05/9 dated August 22nd, 2008 has merely extended the operation of The West Bengal Agricultural Produce Marketing (Regulation) Act, 1972 to the Burdwan District, and hence the same is not interfered with. We, however, clarify that the said notification of 2008 will not in any way empower the State and/or the market committee of the Burdwan District to levy market fee on the manufacture and trade of 'De-oiled Rice bran' and 'Rice Bran Oil' in the said market area. 138. The West Bengal Agricultural Produce Marketing (Regulation) (Amendment Act), 2014 is intra-vires the Constitution of India and did not require the prior consent of the President of India before the introduction of the bill in the legislature so also The West Bengal Agricultural Produce Marketing (Regulation) Amendment Act, 2017. 139. The executive notification no. 877-AM O 9M-46/2011 dated 24th July, 2017 issued pursuant to the Amendment Act of 2014 (supra) and 2017(supra), adding 'De-oiled Rice Bran and Rice Bran Oil' to the Schedule of the Act of 1972 is hereby quashed. All and any market fees levied by the State respondents on the Rice bran oil and de-oiled Rice bran are declared illegal. 140.....